‘No further correspondence will be entered into’

22 February 2019 25 February 2019

By Terry Flanders*

The public sleeps more soundly knowing they are protected at night and that help is but a quick 000 call away. How well would you sleep if in fact you could not rely on our emergency first responders to provide the services we expect?

On 24 July 2018 a NSW Upper House inquiry delivered their report[i] entitled ‘Emergency services agencies’, into ‘policy response to bullying, harassment and discrimination in certain emergency service agencies’. On 15 February 2019 a second inquiry conducted by the Australian Senate delivered their report[ii] on ‘The people behind 000: mental health of our first responders’.

When read together, the reports offer a disturbing insight into how the agencies running the police, fire brigade, ambulance and 000 call centres treat the people whom we depend upon to make us safe and secure.

Emergency services respond to a vehicle accident – 9 News.

The NSW inquiry disclosed management systems within different agencies as all having, to some degree, unsafe systems of work[iii], and made a number of recommendations.

The federal Senate inquiry predominately called for more research and provided an expanded view of the problem. The federal Inquiry also went outside first responder agencies to review the effects of the workers compensation and independent medical examiners sourced by insurance companies.

Both reports provide a disturbing, behind-the-scenes insight into problems that can affect us all.

As a former member of the NSW Police I have watched as, over the years, the culture of the NSW Police took on a more corporate management approach to law enforcement. An approach that, given the content of both reports, I would characterise as unethical if not criminal in some circumstances.

Although this article focuses on the mis-managed systems that relate to NSW Police, my opinions and conclusions largely apply to other emergency first responder agencies at the state and national level.

To sustain large social systems, society needs to be governed. In Australia we are afforded certain rights and liberties which are balanced by societal norms influenced by cultural or ideological pressures and bounded by the judicial system. Justice, equality and civil liberties are fundamental principles that should apply to all.

Sadly however, these concepts are applied disproportionately to different sections of our society. It is arguable that, in NSW, the most disadvantaged group of people are the members of the NSW Police Force.

NSW police managers have engaged in practices I would describe as ‘judicial performance management’. This occurs when police managers use their legal authority to arrest and charge and/or apply for search warrant, listening device warrants and/or telephone intercepts against police.

The effect is that the judiciary is made part of the police performance management system. Examples[iv] include Phil Arantz, Harry Blackburn and Operation Mascot. In 1971 Mr Arantz disclosed that police were keeping two sets of crime statistics: he was declared mentally ill. Mr Blackburn was charged in 1989 with 13 sexual assault crimes and other offences, crimes that were not supported by the available evidence while evidence supporting Mr Blackburn’s innocence was ignored.

Operation Mascot – which ran between 1999 and 2001 – saw more than 100 police being electronically monitored as part of an investigation. ‘Mascot’ did uncover some corrupt and criminal activity, but was also responsible for one suicide, an attempted suicide and the mental breakdown of a number of police who apparently did not commit any crimes[v].

Events show a pattern

These three examples, taken separately, may appear as disassociated historical events. I would argue that the three examples are part of a growing body of evidence that show a ‘modus operandi’ supporting the argument that judicial performance management is being used.

The body of evidence includes the workplace health and safety (WHS) criminal antecedents of the NSW Police, as well as appeals by some police who have been the subject of Section 181D applications under the NSW Police Act. With nine convictions involving incidents of serious injury and death, the NSW Police can be described as a ‘WHS criminal recidivist’.

When a police officer is being dismissed for unethical or conduct offences, they have a right of appeal by making a Section 181D application to the Industrial Relations Commission (IRC).

In nine matters where police officers appealed decisions by police managers, the IRC upheld the appeal, finding that the NSW Police acted unfairly, harshly or unjustly. What distinguishes these cases from others is that the police officers had been diagnosed with post-traumatic stress disorder (PTSD) prior to engaging in conduct that police managers viewed as warranting dismissal. Effectively, I believe, they were being ‘performance managed’ out of the police.

In upholding the appeals, the IRC seems to be indicating that the police management running the process may have been acting unethically. It should be noted that in addition to these nine police officers, another three officers exposed to this system committed suicide.

Supporting the argument that the police management system is in part, unethical, harsh and unjust are findings from the NSW Royal Commission into Police Corruption[vi] conducted by Justice Wood in the mid-1990s.

The Wood RC found that police engage in what Commissioner Wood described as “process corruption”. The definition of ‘process corruption’ includes:

In a continuing discussion about police corruption, Commissioner Wood introduced the concept of ‘noble cause’[viii].

‘Noble cause’ is also referenced throughout an ‘Office of Police Integrity Report’ (2007) titled ‘Past Patterns – Future Directions Victoria Police’ and the problem of corruption and serious misconduct’. It would seem that ‘gilding the evidence to present a better case’ creates cognitive dissonance in police who use ‘noble cause’ as a euphemism to rationalise and mitigate dissonance when expected practices become unethical or cross over to criminal misconduct. Another excuse for ‘gilding the evidence’ is that NSW police managers are acting in the “spirit” of the law.

Mission wording critical

The ‘mission’ of the NSW Police Force is to work with the community to reduce violence, crime and fear, according to Section 6 of the NSW Police Act. Section 6 has more to offer as it includes the following statement regarding the ‘functions’ of the NSW police. In effect police are instructed by law “to do anything for, or incidental to, the exercise of its functions”.

Section 6 of the Police Act does not constrain police by including a phrase like ‘…to do anything (within the law) …’.

Whether or not judicial performance management is an appropriate term, what is evident is that the culture of the NSW Police is broken. Dr Andrew Hopkins, addressing ‘Culture and Leadership’ makes the following comments:

The concept of culture has been defined in a multitude of ways: observed behavioural regularities, group norms, espoused values, formal philosophy, rules of the game, climate, embedded skills, habits of thinking, shared meanings and root metaphors”[ix].

and

Leaders create and change cultures, while managers and administrators live within them”[x].

Evidence from the federal Senate Inquiry (para 3.47) supports the view that in fact the NSW Police culture is broken.

This is supported by other evidence, such as that pertaining to NSW Police. Although NSW Police did not wish to engage with this inquiry and declined opportunities to make a submission or appear at a public hearing, the committee noted witnesses’ scepticism about policies being put into place by the service”.

A common thread linking all these individual events is the concept of workplace “violence”, towards police, which is enabled under nationally-harmonised WHS laws. In this case – as identified in the NSW Upper House Inquiry and implied by the federal Senate Inquiry – workplace violence includes bullying and harassment. Such behaviour is a crime under WHS legislation, and is commonly described as unreasonable management practices.

But, I would argue, a situation has developed where the law enforcers are also law breakers against their own employees. The obvious question is why/how has this happened?

In answering this question, you must consider two aspects.

The first is that the NSW Police are the principal WHS criminal investigators in NSW, so who will investigate them?

Secondly, police officers making a complaint against police managers can only complain to other police managers.

Police managers investigate their colleagues: the investigating police work at the same police station where the respondent and complainant are stationed. This is a closed system, which means that the system is ‘corrupted’ by its very nature, and must add to the increasing stressors placed on police officers.

‘Triaging’ narrows focus

How police managers appear to ‘investigate’ complaints is by triaging the complaint. The triage process deconstructs the event and any attributable evidence. The investigator(s) focus is narrowed so some facts are saved, and some are discarded or become less reliable (triage). The complaint is then re-assembled based on facts supporting the police managers’ perspective. The newly-constructed event and the supporting ‘gilded’ evidence is now the basis of further actions whether disciplinary or legal.

Harmonised WHS legislation extends the range of white-collar crimes. With an extensive history of repeat WHS convictions over the years, NSW Police managers show a demonstrated pattern of behaviour over decades that has been recently reported in evidence relied upon by both the NSW and federal inquiries.

While my comments relate specifically to NSW Police management systems, after reading both inquiry reports, it is obvious to varying degrees they are equally relevant to other police and emergency first responder organisations.

Sadly, the literature indicates that sufferers of PTSD may not recognise they are affected by stress and may engage in hedonistic behaviour, take alcohol or drugs and become aggressive. While the Person Conducting the Business or Undertaking (PCBU, as used in WHS ‘speak’ – and meaning the NSW Police Force in this discussion) may not be directly responsible in some cases for the mental health of workers, the PCBU is responsible for developing safe systems of work and the culture that is behind those safe systems.

It is a sad indictment on the NSW Police Force that the organisation did not support the federal Senate inquiry as actions speak louder than words.

Governments are sometime reluctant to act when the result will highlight chronic failures in social systems. The elephant in the room in this situation is that our social perception of safety and security is at risk daily: actions (and inactions) by first responders will only shine a spotlight on the depth of the issue over time.

Evidence refutes ‘safe and secure’

The evidence implies we are not ‘safe’ and ‘secure’. In 2015, eight emergency responders committed suicide in Australia [xi]. This figure only relates to full-time emergency responders, not part-time, volunteers or those medically retired so it is likely at the lower end of the real situation.

With the evidence now collected by both Inquiries, how long will it be before the federal, state and territory governments action this matter? I fully support the recommendations in the NSW Upper House report but would add the following:

Firstly, that a review panel including experts and those with lived experience of mental health gained while working as emergency first responders be established to guide the implementation of the recommendations, and

Secondly, that Section 6 of NSW Police Act is amended to direct police to do ‘anything within the law’ when exercising their powers.

As far as law enforcement is concerned the thin blue line is broken. We are not ‘safe’ and ‘secure’. If NSW Police managers treat fellow officers unethically, harshly and unjustly; then what are they capable of doing to other people, like normal citizens?

Apathy tacitly supports unethical practices.

My final recommendation is that government must act now to deal with workplace-generated mental health issues affecting first responders by expanding the definition of ‘first responders’ to include defence force personnel and doctors and nurses in the hospital system, and perhaps others.

My experience with police managers having investigated a matter internally and attempting to justify their unjustifiable actions is that they conclude the matter by informing the complainant that “no further correspondence will be entered into”.

That’s a response I find completely unsatisfactory. What keeps me awake at night is the thought that if we can’t look after those who look after us, what emergency response do we deserve?

* Terry Flanders is a former NSW Police Detective Sergeant with 23 years experience as a police officer. He currently operates a safety and security consultancy service called ‘Investigation Systems’ with a focus on workplace violence. He is a member of the American Society for Industrial Security (ASIS), a Certified Protection Professional (CPP) and a Fellow of the Safety Institute of Australia (SIA), Certified Generalist OHS Professional (CGOHSP)

Note 1: Police officers are starting to fight back against inequitable treatment, and are having wins in the courts. For example, in Susan Buswell v TAL Life Liimited (2018) NSWSC 1507, decided late in 2018, the 25-year-police veteran Buswell won her claim that her income protection benefits should not be cut by an insurance company. The case may open the doors for the many police officers forced to resign on physical or mental health grounds but denied full benefits to demand their situations be reviewed.

Note 2: The NSW Government has responded to the report of the NSW Legislative Council. In summary the government tacitly supports the current broken system of work and will not generate the positive changes called for in the report. It seems that this is just another way of saying ‘no further correspondence will be entered into’.

The Tasmanian AG has instantly rejected the CLA Australia Day call for an inquiry into the state’s legal system in 2020-2021. 'Nothing to see here, the system's perfect,’ she suggests. See CLA AUST DAY LETTER